Recently, the Federal Court of Canada in Jeleca [Jelaca v. Canada (M.C.I), 2018 FC 887] upheld the negative decision of an Immigration Officer after determining there were reasonable grounds to believe that the Applicant was inadmissible under paragraph 35(1)(a) of the Immigration and Refugee Protection Act (IRPA) because of his role as a member of the Bosnian Serb Army also known as the Vojska Republike Srpske (VRS) that led the siege of Sarajevo during the Bosnian War. Paragraph 35(1)(a) of IRPA provides that a person can be inadmissible to Canada for violating human or international rights if he or she has committed an act outside Canada that constitutes an offence under sections 4 to 7 of the Crimes Against Humanity and War Crimes Act.

The Applicant in Jeleca was deployed as a guard in Sarajevo during the siege from August 1993 to January 1994. The siege itself lasted for nearly four years and during that time many moral lines were crossed, including the killing, raping, wounding and looting of civilian population at a shocking scale. Open source documentation indicated that members of the VRS in the location where the Applicant served prevented humanitarian assistance from reaching the besieged civilian population. Although there was no direct evidence linking the Applicant to the crimes committed, the Court in Jelaca noted that, based on the Supreme Court of Canada’s decision in Ezokola, a determination of inadmissibility “on grounds of violating human or international rights” under paragraph 35(1)(a) of IRPA, does not require personal commission of the crime to establish complicity.

In Ezokola, the Supreme Court of Canada determined that as long as there is evidence showing that the person made “voluntary, knowing and significant contribution” to the crime or criminal purpose, the person is inadmissible to Canada even if they were not directly involved in crimes against humanity. [Ezokola v. Canada (M.C.I.), 2013 SCC 40]. This is because, as noted in Ezokola, the standard of proof required for exclusion or inadmissibility determinations under paragraph 35(1)(a) is “reasonable grounds to believe,” which is different from the standard of proof for determinations of guilt that is “beyond a reasonable doubt.” Since Ezokola Canadian jurisprudence has continued to find that the applicability of paragraph 35(1)(a) does not depend on non-involvement. Complicity is made out if there is cogent evidence of “voluntary, knowing and significant contribution” in the commission of crimes against humanity. The Federal Court in Jeleca decided that the officer’s decision was justifiable in law and fact as there were reasonable grounds to believe that the Applicant as a member of the VRS had made a “voluntary, significant and knowing contribution” to the siege of Sarajevo and as a result was inadmissible.

Think you may be criminally inadmissible to Canada? Click here to learn more.

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What has changed?

The implementation of the Cannabis Act has legalized the possession of less than 30 grams of cannabis purchased from authorized distributors, however, possession of more than 30 grams of cannabis and cannabis purchased from an unauthorized distributor will remain a (serious) offence.[1]

There is a misconception that the Cannabis Act makes it legal to possess cannabis without conditions. This is not true.  Section 2 of the Act defines illicit cannabis as ‘that which is or was sold, produced or distributed by a person prohibited from doing so under this Act or any provincial Act or that was imported by a person prohibited from doing so under this Act.’ Additionally, the Act prohibits the use and possession of Cannabis outlined under S.8 (1):

• for an individual who is 18 years of age or older to possess, in a public place, cannabis of one or more classes of cannabis the total amount of which, as determined in accordance with Schedule 3, is equivalent to more than 30 g of dried cannabis;
• for an individual who is 18 years of age or older to possess any cannabis that they know is illicit cannabis;
• for a young person to possess cannabis of one or more classes of cannabis the total amount of which, as determined in accordance with Schedule 3, is equivalent to more than 5 g of dried cannabis;
• for an individual to possess, in a public place, one or more cannabis plants that are budding or flowering;
• for an individual to possess more than four cannabis plants that are not budding or    flowering; or
• for an organization to possess cannabis.

Pardon?

The Federal NDP Justice Critic, Murray Rankin tabled a Private Member’s Bill on October 4 calling for the expungement of cannabis charges from the records of Canadians. He outlined that should the bill be passed, this will clear the charge from a person’s criminal record who had faced the charges in Canada.[2] He believes this is preferable to the government’s plan to offer expedited pardons (now known as record suspensions) to individuals who were previously convicted of simple possession of marijuana in Canada. Member’s On the other hand, convictions made outside of Canada will depend on the jurisdiction’s laws regarding Cannabis.  And there is more.  One, Private Member’s Bills rarely receive traction and the effect of an expungement is different from a pardon.  The former being the proffered route because it is as if the offence never happened.

Two, some of these convictions go back many years so funding the records and in particular the amount may be virtually impossible in certain cases.  More still, applying for a pardon may place something on the radar that may not have been there before.  So until there is a better sense how this will play out perhaps a wait and see approach should be a consideration.

Be Careful Stepping Outside Canada!

Additionally, Canada Border Service Agency rules are not changing. Taking cannabis, or any product containing cannabis, across Canada’s international borders, whether when leaving or entering Canada, will remain unlawful and can result in criminal inadmissibility.[3]

Am I Inadmissible?

The hope is that the new law would benefit future applicants who can meet the lawful exemptions for cannabis possession.  But again, this is not a given.  If the offence was committed prior to the legalization of cannabis it was still an offence then under Canadian law which may deem a person inadmissible even after legalization.  In all more questions than answers, proceed cautiously and let’s not get to high on the changes until more of the details become clear.

(sources)

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Key Citizenship Act Changes

The reduction of the physical residency requirement from four out of six years reduced to three out of five years in October 2017 enabled newcomers to have earlier access to the wide range of benefits Canadian citizenship bestows on new citizens. At the same time though the changes likely created a new backlog in itself, making a number of applicants immediately eligible for citizenship, thereby taxing the system. The changes also allowed permanent residents who spent time in Canada as a foreign worker, international student, or protected person before transitioning to permanent residence to count each day spent in Canada on temporary status as half a day of residency, up to a maximum of 365 days. The government also removed the requirement that applicants had to be physically present in Canada for 183 days or more in four out of the six years preceding their application. Original citizenship fees were $100, then increased to $300 in 2015 and now the total fee for an adult to be granted citizenship is $630, which consists of $530 for the processing fee and $100 for the right of citizenship fee.

What do the numbers Say – How Many People Are Applying for Canadian Citizenship?

– The changes resulted in application surges – it was reported by CBC News that applications jumped from a weekly average of 3,653 to 17,500.

– More than 105,000 new Canadians were administered the oath at an estimated 1,400 citizenship ceremonies in 2017, according to IRCC.

– In May 2018, Canada’s federal government increased the number of citizenship judges it employs from five to fourteen, just months after it relaxed the requirements for obtaining Canadian citizenship. Prior to this, Canada only had 5 citizenship judges.

– Official processing times are listed at twelve months which would be a significant reduction from the three to four years we were seeing before but we have not received final decisions on applications filed after the law changed in the fall last year so cannot confirm yet if that twelve months will be a reality.

Impact of International Students?

It has been reported after the introduction to the Bill C-6 amendments more than half of new applicants for Canadian citizens were former international students. Immigrants contribute greatly to Canada, strengthening and enriching our country first economically with international student tuitions and then in filling employment shortages (i.e.: transport and construction industries) that strengthen the country’s future. They also offer unique perspectives that add to Canada’s diverse culture. Beyond this it is important to clarify that students often transition to employment and then permanent residents of Canada. The permanent residents are applying for citizenship and not students directly. Many other applicants flow from obtaining their status through family class categories as well as economic streams.

What About Family Class Processing – How Long is it Taking?

According to IRCC, in February 2018, the average wait time was amended to one year in about 80 per cent of cases, down from the previous two-year wait. This is a wonderful development, but with any change comes complications, i.e.: it is possible that the remaining 20% could be waiting well beyond the previous 2-year period? It is important to note that the referenced 80% appear to be those with straightforward cases with no admissibility issues or complications, i.e.: criminal, eligibility for sponsors, etc. In general, overseas and in-Canada spousal sponsorships are processed within 12 months as undertaken. Parents/Grandparents are generally still requiring two years. We don’t see many refusals of super visas.

The processing of children is also requiring twelve months I would hope this could be improved as children are most prone to suffer from separation. Our clients have also commented that from their own experiences, being issued an open work permit has been life changing, allowing them the opportunity to work and contribute to their family income, thereby also eliminating potential marriage breakdowns when one spouse is shouldering a financial burden. IRCC informs that the work permit pilot, for now, will remain in effect until 31 January 2019.

So overall processing times seem to be improving which is wonderful for future Canadians and their families. It will be interesting to revisit the processing times once we reach the one-year mark on many of these citizenship applications.

To learn more about how to obtain Canadian citizenship, please click here.

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Although impaired driving is a hybrid offence, for the purposes of criminal inadmissibility, it is considered to be an indictable offence (i.e. more serious) regardless of the manner the Crown elects to prosecute the matter. Subsection 36(3)(a) of the Immigration and Refugee Protection Act (IRPA) reads:

36(3)(a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily.

Upon conviction, in addition to the criminal penalties, a non-citizen could possibly face the loss of his or her permanent resident status, and, consequently removal from Canada on the basis of serious criminality as set out in subsection 36(1) of the IRPA, which reads as follows:

36(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for:

• (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed.

Moreover, because of the new changes, there is no deemed rehabilitation option available as it only applies to offences with a maximum sentence of less than ten years. Rehabilitation means that the individual no longer associates with a criminal lifestyle and does not remain at risk for recidivism (risk of reoffending). Now, offenders with impaired driving convictions will have to apply for criminal rehabilitation five years after the completion of the criminal sentence, thus making overcoming criminal inadmissibility all the more complicated.

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For Canadian convictions, an expungement is only available for historically unjust acts (laws), i.e.: concerning prior laws criminalizing same sex couples.  The more prevalent option is a Record Suspension (previously a pardon). A Record Suspension can be revoked in Canada. Record Suspensions are governed under the Criminal Records Act (CRA) and the provisions for approval are rigorous.

 Section 36 of the Immigration and Refugee Protection Act (IRPA) governs the criminal inadmissibility provisions.  Inadmissibility captured under subsections (1) and (2) may not be based on a conviction in respect of which a Record Suspension has been ordered and has not been revoked or ceased.

With respect to the operation of paragraphs 36(1) (b) or (c) of the IRPA the Federal Court of Appeal in Saini[1] summarized the law as it relates to the effect given to a foreign discharge or pardon. It is a three-part test:

[24]   To summarize, our jurisprudence requires that three elements must be established before a foreign discharge or pardon may be recognized: (1) the foreign legal system as a whole must be similar to that of Canada; (2) the aim, content and effect of the specific foreign law must be similar to Canadian law; and (3) there must be no valid reason not to recognize the effect of the foreign law.

The Court went on to elaborate on these requirements, and the Canadian law regarding pardons, as follows:

[29] … The systems must be “similar” not “somewhat similar”… It does require, however, that there be a strong resemblance in the structure, history, philosophy and operation of the two systems before its law will be given recognition in this context.

For example, questions to ask as it relates to this branch of the test include, is it a democracy, common law based, are the legal systems similar, corruption levels, etc.?

[32] Second, we must address the content of Canadian laws as compared to the foreign law regarding pardons, which includes the process as well as the factual basis upon which it may be granted…

With respect to this prong, important questions include: does the legislation have the same intent, is the pardon automatic, is there a similar wait time, can it be revoked, is there discretion, etc.?

[35] Third, we must explore the effect of a pardon in Canada as compared to the effect of the foreign pardon…

 [42] Thus, we must assess the third requirement of Burgon, that there was, “no good reason for Canadian immigration law to thwart the goal of [the] British legislation”. This Court expressly stated in that case that we ought to respect the legislation of countries similar to ours, “unless there is some valid basis for deciding otherwise” or there is a “solid rationale” for not doing so. …

 [43] In our view, the seriousness of the offence can be considered under this third requirement. … The gravity of the crime of highjacking is obvious; it is universally condemned and punished severely…

 [44] In our view, the gravity of the offence can and should be considered when deciding whether or not to give effect to a foreign pardon. Even if the Pakistani legal system were similar, and even if the pardon were given under a law similar to Canadian law, the conviction in this case was for an offence so abhorrent to Canadians, and arguably so terrifying to the rest of the civilized world, that our Court is not required to respect a foreign pardon of such an offence.

As such, the third prong of the test in Saini involves an assessment under the rehabilitation provisions.  The recent decision in Havlikova, 2018 FC 691 last month spoke to the depth of the analysis.  In upholding the reasonableness of the decision, the Honourable Mr. Justice Diner wrote at length about the Officer’s analysis:

[32]  The Officer then considered the document of the Bruntal Court dated November 3, 2014, expunging Mr. Istok’s convictions, and noted that the Court considered only (a) the passage of five years, (b) the fact that Mr. Istok was convicted of no further offences during those years, and (c) a police report dated October 13, 2014, indicating that Mr. Istok had no record of criminal activity. The Officer concluded that the Bruntal Court had had no choice but to expunge Mr. Istok’s convictions since the conditions of paragraph 105(1)(c) were met.

 [33]  The Officer contrasted paragraph 105(1)(c) of the Czech Criminal Code to the record suspension provisions under the CRA. The Officer consulted the Decision-Making Policy Manual for members of the Parole Board, noting that members considered multiple factors when considering “good conduct”under paragraph 4.1(1)(a) of the CRA.

 [34]  Further, the Officer observed that a Parole Board member’s analysis under the CRA is not limited to assessing “good conduct”, but also the “measurable benefit” of a record suspension, the applicant’s rehabilitation, and whether the granting of a record suspension would bring the administration of justice into disrepute. Significantly, the Officer concluded that the Parole Board may refuse to grant a record suspension even if the prescribed period has elapsed and the applicant has not been convicted of any further offences, and that a record suspension may be revoked. In the Officer’s view, these all constituted significant distinctions from the Bruntal Court’s expungement considerations in Mr. Istok’s case.

 [35]  Consequently, the Officer found that there were reasonable grounds not to recognize the Czech expungement of Mr. Istok’s offences under Canadian law. However, the Officer, as a matter of further fairness, decided to solicit submissions from Mr. Istok. After reviewing Mr. Istok’s further submissions and materials, the Officer resumed the analysis of Mr. Istok’s application, undertaking a further lengthy analysis of Mr. Istok’s convictions in the Czech Republic, which I need not summarize here as they are not disputed. Suffice it to say that, according to the GCMS notes, Mr. Istok was convicted of at least eight criminal offences in the Czech Republic, five of which were equivalent offences for the purposes of IRPA’s “serious criminality” provisions, and that his prison sentences were, in total, approximately five years in length.

 [36]  In considering whether Mr. Istok’s Czech expungement should be recognized in Canada, the Officer dealt first with the specific evidence tendered by Mr. Istok, and found that his materials had not addressed the concerns previously raised. The Officer confirmed the earlier conclusion that a Czech court must expunge a criminal conviction if the conditions of paragraph 105(1)(c) of the Czech Criminal Code are met, which is a very different process than the highly discretionary one undertaken by the Parole Board under the CRA in deciding whether to grant a record suspension. The Officer further observed that the provisions of the CRA are more severe than those in the Czech Criminal Code, since the CRA provided for only two time categories — five or ten years — with the fact of indictment resulting in a waiting period of ten years. Further, the Officer noted that certain offences in Canada’s regime are ineligible for a record suspension altogether.

 [37]  To underline this distinction, the Officer pointed to the CRA’s Decision-Making Policy Manual, which directs the Parole Board to consider numerous factors when deciding whether or not to grant a record suspension. By contrast, the Bruntal Court document, being short in length with a single page of analysis, did not demonstrate the same “rigour” that one would expect from the Parole Board. Thus, the Officer concluded that the second Saini factor had not been satisfied on the facts of Mr. Istok’s application.

 [38]  With respect to the last Saini factor — namely, whether any valid reason exists not to recognize a foreign pardon — the Officer observed that the severity of Mr. Istok’s criminal history constituted a valid reason not to recognize his expungement. The Officer noted that some of the judgments in respect of his convictions pointed to Mr. Istok’s lack of repentance, and that his lengthy prison stays did not seem to have reduced his risk of re-offending. The Officer further noted that, on the facts of his case, Mr. Istok would not be able to satisfy the Minister of his rehabilitation under  under paragraph 36(3)(c) of IRPA, and that there was reason to doubt that he would have received a record suspension in Canada.

 Therefore, representatives and applicants alike have many factors to consider and cannot assume a foreign pardon means to no criminal inadmissibility.

[1] Canada (M.C.I.) v. Saini [2002] 1 FCR 200.

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In the recent case of R v. Wong, 2018 SCC 25, the Supreme Court of Canada considered whether or not a permanent resident who was not aware of the immigration consequences at the time he pleaded guilty could later be allowed to withdraw his plea. Mr. Wong was a citizen of China and permanent resident of Canada who immigrated to Canada 25 years ago. He had pleaded guilty to one count of cocaine trafficking without being aware of the resulting inadmissibility and inability to appeal a removal order against him at the IAD. While serving his nine-month prison sentence he finally became aware of these consequences.

The four-member majority ruled that for a guilty plea to be withdrawn in such a situation the accused
must file an affidavit establishing a reasonable possibility that they would have either (1) opted for a trial and pleaded not guilty; or (2) pleaded guilty, but with different conditions. To assess the veracity of that claim, courts can look to objective, contemporaneous evidence. The inquiry is therefore subjective to the accused, but allows for an objective assessment of the credibility of the accused’s subjective claim. (Para. 6)

Mr. Wong’s affidavit lacked an explanation of “what he would have done differently in the plea process had he been informed of the immigration consequences of his guilty plea…” (Para. 37) Therefore, the majority was “of the view that he has not established prejudice giving rise to a miscarriage of justice.” (Para. 39)

The majority of the Court in Wong has made it clear that a guilty plea is possible where an accused was unaware of the immigration consequences and is able to articulate what they “would have done differently” had they been better informed. It is worth noting that the three-member minority would not have focused on “whether there is sufficiently specific language in an affidavit as to how the accused would have proceeded if properly informed.” (Para. 94)

To avoid having to seek a withdrawal of a guilty plea, the accused and their counsel should contemplate how a conviction and sentence will affect the accused’s ability to remain in Canada at the earliest stage possible.

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PRRA is essentially a two-step risk assessment process in which the applicant has 15 days to file the PRRA forms and an additional 15 days to make written submissions and adduce evidence about the risks to which the applicant would be exposed to if returned to their country of nationality or habitual residence. The onus is on the applicant to specify the nature of the risks they would face if forcefully removed and that there is a lack of state protection for people specifically in their circumstances who face a risk of persecution.

In the case of a failed refugee claimant, PRRA officers are required to evaluate any new, relevant and material evidence not previously assessed and which would have changed the outcome of the refugee claim had the evidence been put forward at the time. If successful on a PRRA, the applicant is granted the status of a protected person, which would allow them to apply for permanent residence in Canada. The conferring of refugee protection, however, may not be applicable to individuals found to be inadmissible on the grounds of serious criminality, security, violating human or international rights or organized criminality.

Applying for a pre-removal risk assessment? Contact us today!

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